Barrington v. A. H. Robins Co.

• Decision Date: 29 July 1985
• Citation: 702 P.2d 563,39 Cal.3d 146,216 Cal.Rptr. 405
• Court: California Supreme Court
• Parties: , 702 P.2d 563 Cheryl BARRINGTON, Plaintiff and Appellant, v. A.H. ROBINS COMPANY, Defendant and Respondent. L.A. 31939.

Page 405

216 Cal.Rptr. 405

39 Cal.3d 146, 702 P.2d 563

Cheryl BARRINGTON, Plaintiff and Appellant, v. A.H. ROBINS COMPANY, Defendant and Respondent.

L.A. 31939.

Supreme Court of California In Bank.

July 29, 1985.

Panther, Pines, McCann & Goldstein, Michael T. Pines, C. Daniel Carroll and Michael Goldstein, Oceanside, for plaintiff and appellant.

Paul H. Cyril, Elliot L. Bien, Barbara J. Paulson and Bronson, Bronson & McKinnon, San Francisco, for defendant and respondent.

BROUSSARD, Justice.

This is an appeal from a dismissal of an action for failure to serve summons and complaint within three years. The issue presented on appeal--one of first impression--is whether a complaint amended to charge a Doe defendant with a new cause of action arising from different operative facts must be served within three years of the original filing.

I

Petitioner Cheryl Barrington filed suit on July 3, 1979, alleging causes of action against Dr. Taras, Darvon Manufacturer, and Does 1 through 40 for medical malpractice and the negligent failure to warn of the dangers involved in taking a drug.

In October 1979, petitioner substituted A.H. Robins Company (Robins) for Doe 40. On February 29, 1980, she filed a first amended complaint, which added a new cause of action only as against Robins. ¹ This new cause of action alleged that the instrumentality causing the injury was a defective "Dalkon Shield" intrauterine device, manufactured by Robins.

Service and return of the summons and amended complaint on Robins was not made until July 19, 1982--two years and six months after the filing of the amended complaint, but three years and seven weeks after the filing of the original complaint. ² Petitioner offered no explanation for the delay. Robins' motion to dismiss the action under Code of Civil Procedure section 581a, ³ was granted; the trial court held that a Doe defendant must be served with process within three years of the original commencement of the suit. For the reasons stated below, however, we conclude that the amended complaint was improperly dismissed. The order of dismissal must be reversed.

II

Defendant relies on the general rule that "with respect to a party named in the original complaint the action commences for the purpose of section 581a, subdivision (a), on the date of filing of the complaint. The same rule applies also in a case where the defendant was named in the original complaint by fictitious name. However, when a new party is added to the action, the action commences as to him on the date of the order adding him as a party or on the date of filing of the pleading naming him as a new party." (Nelson v. A.H. Robins Co. (1983) 149 Cal.App.3d 862, 866, 197 Cal.Rptr. 179.) Since defendant was a party to the original complaint, albeit under a fictitious name, defendant contends that the three-year period for service upon it commenced with the filing of the complaint.

Plaintiff, on the other hand, urges us to apply section 581a in light of the "relation- back" doctrine used in construing similar statutes. Under this doctrine, if a cause of action in an amended complaint does not relate back to the original complaint as to this cause of action, the three-year period under section 581a would commence to run from the filing of the amended complaint. Petitioner concedes that the first three causes of action in her amended complaint relate back, and therefore were properly dismissed. She asserts, however, that the fourth, the "Dalkon Shield" cause of action, does not relate back since it was based on a different set of operative facts and involved a different "instrumentality" and "accident" from the first three causes of action.

The relation-back doctrine has been used to determine the time of commencement of an action for the purpose of the statute of limitations. Normally, the statute of limitations commences to run regardless of the injured party's ignorance of his or her cause of action. (3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 368, p. 2030.) In Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681, we held that an amended complaint is not barred by the statute of limitations, even though it substitutes a named party for a fictitious defendant, if the amended complaint relates back to a timely original complaint. Reasoning that the defendant was not prejudiced by the filing of an amendment after the statutory period had elapsed, we observed that "a defendant unaware of the suit against him by a fictitious name is in no worse position if, in addition to substituting his true name, the amendment makes other changes in the allegations on the basis of the same general set of facts...." (Id., at p. 602, 15 Cal.Rptr. 817, 364 P.2d 681.) Conversely, "a plaintiff who did not know of the true name at the time the original complaint was filed ... has at least as great a need for the liberality of amendment ... as a plaintiff who knew the defendant's name throughout, and he should not be penalized merely because he was compelled to resort to his statutory right of using a fictitious name." (Id., at p. 603.)

We later traced the evolution of the relation back doctrine in Smeltzley v. Nicholson Manufacturing Co. (1977) 18 Cal.3d 932, 136 Cal.Rptr. 269, 559 P.2d 624, and formulated a general rule: An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar against named parties substituted for fictitious defendants, if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint. (Id., at pp. 936-937, 136 Cal.Rptr. 269, 559 P.2d 624.)

Plaintiff's contention that the Dalkon Shield cause of action does not relate back is supported by Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 153 Cal.Rptr. 366. In Coronet, the original complaint in an action for wrongful death alleged that plaintiffs' daughter was electrocuted while using a dangerous instrumentality--a defective hair dryer. The defendants were the corporation that manufactured the hair dryer and a number of Doe component suppliers. The amended complaint, which identified Coronet for the first time as one of the Doe component suppliers, was filed after the statute of limitation had run as to the original complaint. The amended complaint, however, alleged that the dangerous instrumentality was a lamp socket and switch manufactured by Coronet rather than a hair dryer.

The court held that the amended complaint did not relate back to the original complaint, and was thus barred by the statute of limitations. The court announced that an amended complaint relates back only if it is based on the same operative facts, and refers to the same "offending instrumentality" and "accident." The amended complaint before the court did not relate back because "[t]he difference between being electrocuted by a hair dryer and being electrocuted by a table lamp is as great as being electrocuted by the hair dryer and being poisoned by some improperly processed food found on the kitchen shelf. Although they relate to a single death at a single location, they are different 'accidents' and involve different instrumentalities." (Id., at p. 347, 153 Cal.Rptr. 366.)

Similarly, plaintiff asserts that the new cause of action in the present case does not relate back because it, too, involves separate and distinct "offending instrumentalities" and "accidents." The original complaint alleged that the offending instrumentality was Doctor Taras' negligent medical treatment and the failure of Dr. Taras and Darvon Manufacturer to warn of the dangers involved in taking the prescription drug Darvon. The alleged accident was her ingestion of that drug. By contrast, the amended complaint alleged that the offending instrumentality was a defective and unsafe Dalkon Shield designed, manufactured, and sold by Robins. The alleged accident was tubal-ovarian abscesses and an infection resulting from her use of the Dalkon Shield.

III

The courts below seemed to acknowledge that under Coronet, the causes of action alleged against Dr. Taras and Darvon Manufacturer did not relate back. But because the relation back rule has so far been confined to the statute of limitations, they shrank from applying that doctrine to the service and return requirements of section 581a. We believe that this failure to extend the relation back rule to section 581a is error.

The nature and purpose of section 581a and the statutes of limitation, after all, are virtually identical. "In essence, these statutes [ §§ 581a, 583] are similar to the statute of limitations, only they operate during the period after the plaintiff files the complaint rather than before the plaintiff files the complaint." (Recommendation Relating to Dismissal for Lack of Prosecution 16 Cal.Law Revision Com.Rep. (1982) pp. 2209-2210.)

Both section 581a and the statute of limitations were designed to move suits expeditiously toward trial. (Id., at p. 2210.) Both statutes were enacted to promote the trial of the case before evidence is lost or destroyed, and before witnesses become unavailable or their memories dim. (Ibid.) And both statutes conflict with the "strong public policy" that seeks to dispose of litigation on the merits rather than on procedural grounds. (Ibid.)

Because of this strong public policy, the statute of limitations is said to be a disfavored defense, "to be strictly construed so as to avoid a 'forfeiture' of rights." (2 Witkin, Cal.Procedure (2d ed. 1971) Actions, § 227, p. 1085.) While we do not suggest that section 581a also be transformed into a disfavored defense, we do suggest that certain exceptions created to mitigate the harshness of the statute of limitations--such as the relation-back rule--should be applied also to section 581a.

In arguing that the relation-back rule should not apply to section 581a,...